Foggathorpe enforcement appeal fails but four farm homes escape demolition

The Foggathorpe enforcement appeal has ended with six appeals dismissed, but a major change to what the landowner must do: four farm homes can remain standing, although residential occupation must cease.

Inspector Mark Harbottle upheld East Riding of Yorkshire Council’s enforcement notice with variations on 2nd October 2026, following a six-day inquiry. The dispute concerned Grange Farm on Laytham Road, where former agricultural buildings had been redeveloped into four dwellings.

The Inspector deleted the demolition requirement because the buildings were substantially completed more than four years before the notice. However, the separate change of use of the land remained enforceable. Occupiers now have 10 months from the date the notice takes effect to leave, with 12 months for the remaining clearance requirements.

Why the Foggathorpe enforcement appeal treated the homes as new buildings

The appellants argued that the project was a conversion involving repair and rebuilding, rather than the erection of new homes. That mattered to both the description of the breach and the immunity arguments.

The Inspector rejected their ground (b) case. Two units contained extensive new fabric, occupied an enlarged footprint and had materially different roofs. More original material remained in the other two, but the works formed one development project.

Aerial evidence also undermined the account that storm damage had triggered the removal of much of the earlier fabric. An image from September 2019 showed substantial removal before Storm Lorenzo struck.

Applying Oates v Secretary of State for Communities and Local Government & Anor [2018] EWCA Civ 2229, the Inspector assessed what the works had created as a matter of fact and degree.

He concluded that the previous built form “no longer exists as a recognisable entity”. The result was a new building comprising four dwellinghouses, with the surviving old fabric incorporated into it.

Keeping some walls or roof tiles therefore did not establish a conversion. Oates does not impose a numerical threshold for retained material; the character and extent of the whole operation matter.

Four-year immunity saved the buildings, not their residential use

The combined Foggathorpe enforcement appeal decision, covering references 3370890 to 3370895, draws a distinction which is easy to miss: constructing a dwelling and changing the use of the land are separate questions.

The notice was issued on 25th June 2025. For the operational development, the critical question was whether the four dwellings had been substantially completed before 25th June 2021.

Despite inconsistencies in the evidence, the Inspector found that they had. Electrical records, flooring evidence, photographs and witness accounts together established that the units were ready for residential occupation before the relevant date.

First occupation and substantial completion are not necessarily simultaneous. One unit had initially been used as a welfare facility, but the evidence showed that its facilities for everyday living were already in place.

The four-year test applied under the transitional arrangements for operations substantially completed before 25th April 2024. It should not be read as a general statement that all new building work in England becomes immune after four years.

The land-use position was different. These were newly erected dwellings used residentially from the outset, rather than existing buildings subsequently changed into single dwellinghouses. The relevant agricultural-to-residential change of use of the land attracted a 10-year period.

That period had not been demonstrated. The ground (d) appeals therefore succeeded in relation to the building operations but failed for the material change of use. This is why checking the precise breach against the applicable enforcement time limit matters.

On ground (f), requiring demolition of the immune buildings was excessive, so that requirement was removed. Their physical survival does not authorise continued residential occupation.

There is a further wrinkle: the fencing and hardstanding were also more than four years old. Nevertheless, their removal remained reasonable because they facilitated the unlawful change of use without being fundamental to, or causative of, it. The age of those works did not settle the notice’s requirements.

Planning permission still refused

The deemed application in the Foggathorpe enforcement appeal concerned the remaining change of use and associated amenity-area works. It failed against the settlement strategy in the East Riding Local Plan Update 2025 to 2039.

Foggathorpe is outside the defined settlement network, and the site lies outside its development limits. The Inspector found no support for the development under policies S3 and S4, and identified conflict with national policy on development outside settlements.

He also found intentional unauthorised development. The developer had taken planning advice and sought Class Q prior approval after works had begun. On the evidence, the Inspector concluded that the residential change of use and associated fencing and hardstanding were undertaken knowing they were subject to planning control.

Under the revised Framework considered in the decision, that attracted substantial weight against permission. This was separate from the council’s allegation of deliberate concealment, which the Inspector rejected.

The rents were accepted as attractive and below market levels. However, they were not secured as affordable housing, and no mechanism ensured that those rents, or even the rental tenure, would continue. The benefit therefore carried only limited weight.

A suggestion to restrict occupation to holidays also failed. No supported farm diversification scheme had been demonstrated. Nor did the absence of visual harm outweigh the policy objections: avoiding harm was a neutral factor.

Occupiers get longer to find alternative homes

The Foggathorpe enforcement appeal also had a direct human consequence. Current occupiers had local connections, largely worked nearby and, in one case, had a child at a local school.

The Inspector recognised a shortage of one- and two-bedroom homes and relatively inexpensive rented accommodation. Requiring everyone to move at once could leave them competing for the same limited alternatives.

He extended the period to cease residential use from eight to 10 months. The requested 12 months was not accepted, but the additional time was intended to improve the prospect of finding suitable accommodation locally.

The remaining requirements receive 12 months in total, not a further 12 months after occupation ceases. They cover hardstanding, timber fencing, domestic chattels and resulting waste. The notice remains in force.

PCN evidence leads to a partial costs award

The costs outcome in the Foggathorpe enforcement appeal underlines why a planning contravention notice needs careful, evidenced answers.

The appellants’ application for a full costs award against East Riding was refused. The council secured a partial award limited to ground (d).

Dates advanced at appeal differed by between six and 19 months from the earlier PCN evidence. The responses had suggested staggered completion, while the later case claimed that the dwellings were completed together.

The Inspector did not find deliberate concealment or knowingly untrue statements. He nevertheless concluded that the PCN questions had not been treated with sufficient seriousness. That unreasonable behaviour gave the council reasonable cause to resist the immunity case and test the evidence, generating recoverable costs.

What planners should take from Foggathorpe

For me, the lesson is to read an enforcement notice breach by breach and requirement by requirement. An appeal can fail overall while still removing an excessive demolition requirement.

The different appeal grounds do different jobs. Ground (b) tests the alleged events, ground (d) addresses immunity, ground (f) tests the required remedy and ground (g) concerns time to comply.

The Foggathorpe enforcement appeal also shows why the evidence must be consistent from the beginning. We would want to reconcile construction dates, occupation records and earlier PCN answers before advancing an immunity case. Here, the buildings survived, but residential use still had to end and the costs consequences remained.